In recent years health authorities have found themselves implicated in asbestos related disease claims.  Most of these claims have consisted of occupationally induced malignant mesotheliomas.  Mesothelioma is an asbestos induced malignant cancer generally found in the lining of the lungs.  The condition is latent and usually occurs 30 or more years after first exposure to respirable asbestos fibres.  The condition is incurable and life expectancy generally ranges between 6 - 24 months from first physical symptoms.

Asbestos is a naturally occurring fibrous mineral and was until the late 1960s used extensively as thermal and sound insulation in all types of buildings, including hospitals. 

Asbestos insulation per se does not constitute a health hazard but when it is damaged or becomes friable with age, there is a danger of asbestos fibres being ingested and becoming lodged in the lung tissue remaining dormant until mutation of the mesothelial cell many years later.  Different types of asbestos fibre pose a different level of risk in the causation of a mesothelioma. 

The majority of mesothelioma claims brought against health authorities have resulted from occupational or para-occupational exposure.  Such claims have been brought on behalf of boiler men, general maintenance workers, laundry personnel, nurses, student nurses or by their dependants. 

Asbestos was widely used in the construction of hospitals.  It was by far the most effective fire retardant material.  Boilers, heating and water pipes were lagged in a matrix of asbestos and Portland cement.  Asbestos cement sheets were used for internal walls and fire doors. 

Due to  the numerous changes in the Health Service since the 1960s, few records have survived. Frequently, no valid insurance can be identified covering liability for a mesothelioma claim where exposure occurred 30 or 40 years ago.  Such a claim would not fall to be dealt with by the NHSLA’s claims handling service.  The old liabilities of Hospital Management Committees and Area Health Authorities have been inherited by the Strategic Health Authorities (SHAs) who are unlikely to have reserved for such claims.  A typical mesothelioma claim is worth around £150,000 (exclusive of costs).  A flood of claims can cause a huge dent in an SHA’s budget.

Further, there are claims against SHAs from other culpable employers who seek to recover a contribution towards the damages and costs they have paid to a mesothelioma victim.

Kennedys has extensive experience and expertise in defending  uninsured asbestos related disease claims, particularly claims against SHAs.  Such claims are dealt with sensitively but firmly. It is important that the claims are properly scrutinized and that damages paid from health budgets are only paid where liability and causation are properly established. 

For further information please contact Kieron West (Head of Kennedys' Occupational Disease Unit) – Tel:  0845 838 4831, email: k.west@kennedys-law.com

Neil Davy instructed by Irwin Mitchell LLP for the Claimant. Claire Toogood instructed by Kennedys Law LLP for the Defendant.

Dr Peter Ellis instructed by McCool Patterson Hemsi for the Claimant. Kennedys Law LLP for the Defendant.

Male Claimant, aged 46 years, was prescribed Linezolid by Defendant Trust’s hospital for an infected wound.  He was readmitted five days later suffering from severe anaemia, peripheral oedema and haemoglobin count of 4.2.  Claimant was incorrectly advised he was suffering from leukaemia and would die within a year, but it was subsequently discovered that he was actually suffering from peripheral neuropathy believed to have been caused by prolonged and unmonitored administration of Linezolid.

Claimant alleged negligence in prescribing Linezolid as he did not have MRSA, and for failing to monitor blood results weekly in accordance with BNF guidelines.  Liability not disputed.

Claimant suffered neuropathy in arms and severe neuropathy in his legs and a common peroneal nerve palsy in left knee.  His gait became abnormal causing him to fall frequently.  He had previously worked as an engineer but his injury caused restrictions due to difficulties climbing ladders.  Symptoms were likely to be permanent and he was likely to require further knee surgery with a risk of above knee amputation.  He also suffered psychological injuries after being advised he only had a year to live.

Out of court settlement: £175,000 (estimated General Damages: £60,000).

Lucy MacKinnon instructed by Withy King for the Claimant. Katie Gollop instructed by Bevan Brittan LLP for the Defendant.

Adam Korn instructed by Russell-Cooke LLP for the Claimant. Berrymans Lace Mawer LLP for the Defendant.

Simon Taylor QC and William Latimer-Sayer instructed by Irwin Mitchell LLP for the Claimant. Philip Havers QC instructed by Capsticks Solicitors LLP for the Defendant.

NHS hospitals that discharge patients before they are fully recovered could face financial penalties under new Government proposals.

Independent 8th June 2010.